Rand Paul

Mr. PAUL

Mr. PAUL. Mr. President, could we have order?

Mr. PAUL. I object.

Mr. PAUL. Terrorists and against foreigners. We found that 99 percent of the time, section 213 is used for domestic crime. I believe that no section of the PATRIOT Act should be passed unless our targets are terrorists--not Americans.

Mr. PAUL. Mr. President, reserving the right to object, one of the promises that was given when the PATRIOT Act was originally passed was that, in exchange for allowing a less than constitutional standard, we would only use the actions against----

Mr. PAUL

Mr. PAUL. Mr. President, how much time remains on the clock for the Republican side?

Mr. PAUL. Mr. President, I challenge the ruling of the Chair and request the yeas and nays.

Mr. PAUL. I request a live quorum call.

Mr. PAUL. Mr. President, the time could not have been divided equally, because apparently somebody must have given one side more time than the other.

Mr. PAUL. Mr. President, how can we have an objection when we already have a consent agreement that says we have 30 minutes of equally divided time and you still have 5 minutes remaining on the opposite side?

Mr. PAUL. Mr. President, my understanding is there is still 5 minutes remaining on the opposition side. I request that time.

Mr. PAUL. Mr. President, I request the remaining 5 minutes of time on the opposite side.

Mr. PAUL. Mr. President, how much time is remaining?

Mr. PAUL. Mr. President, I was here for 30 minutes of the Republican side speaking. I sat at my seat for 30 minutes. It was not 23 minutes of equally divided time.

Mr. PAUL

Mr. PAUL. Reserving the right to object, we have entered into a momentous debate. This is a debate about whether or not a warrant with a single name of a single company can be used to collect all of the records--all of the phone records--of all of the people in our country with a single warrant. Our forefathers would be aghast. One of the things they despised was general warrants. This is a debate that should be had. The reason I am objecting is because I have made a very simple request--to have amendments, to have them voted on, and to have a guarantee that they are voted on. I started out the day with a request for six amendments. I am willing to compromise to have two amendments and a simple majority vote. I think that is a very reasonable position. And if we can't have that and we can't have an extensive debate over something we have had 4 years to prepare for, I will object, and I do. I object.

Mr. PAUL. Mr. President, I will defer to the Senator from New Mexico if he wishes to make an objection.

Mr. PAUL. I object.

Mr. PAUL

Mr. PAUL. I suggest the absence of a quorum.

Mr. PAUL

Mr. PAUL. I think I understand that question. The phone companies aren't excited about it, but they will do it if they are paid and told to do it, basically. But the phone companies, I don't know. I don't how much objection they have had to the current system and the new system. They probably don't want to have to hold all this. There are rumors that the people who want more will require them to. I don't think, under the current USA FREEDOM Act, they are going to be required to hold the records, but they are going to be encouraged to and paid to hold the records. So I think the real question is, Is the USA FREEDOM an improvement or are we just going to have bulk collection done by another name, with phone companies holding the records. That is what my fear is.

Mr. PAUL. I think one of the most exciting things probably is the court case--the Second Circuit Court of Appeals--and their ruling. My hope, though, had been that it would go to the Supreme Court. My understanding is it has been remanded to a lower court. I think one of the things that we really need is that we need a ruling that updates Maryland v. Smith. We need a ruling that talks about the fact that most people's records are being held in a virtual fashion. I think there needs to be a ruling that comes from the Court that acknowledges that you still retain a privacy interest in your records, even when they are being held outside of your house. The idea of old fashioned papers in your house--the concept is good, that we should protect that privacy. But I think also the concept technologically is that you know you will not have papers in your house, but you will have private matters that will be held virtually outside the house--and whether or not the Fourth Amendment protects those. You often have advocates from the government who say that the fourth amendment does not apply to any records once they are outside your house or in other hands. I really think that you do not give up your privacy interest when you let someone else hold your records, that you still maintain an interest in privacy even though someone else holds these records.

Mr. PAUL. I guess a followup to that would be this: Are those arguments still being floated from this administration that there are article II powers? There is a debate going on over this Executive Order 12333. The question is whether people are still trying to maintain that Congress has no ability to oversee or review it? But I have seen, at least in the lay press--I think they say in the lay press that there is some special investigation. Without going into detail, is there some kind of investigation or evaluation of the Executive order being done by us or one of the congressional bodies? That was in the lay press.

Mr. PAUL. Well, one of the comments that we went through tonight was an opinion by one of the attorneys in the Bush administration. They said, basically, that there were authorities that they were given that were inherent authorities under article II that gave them the right to collect data on Americans. But they also then concluded by saying that Congress had no business at all reviewing this data; that there was no authority--that they were basically powers given to the President and that Congress has no ability--I guess I would be interested, in the form of a question, if the Senator can answer whether he believes there are article II powers of surveillance of American citizens that Congress has no business questioning?

Mr. PAUL. I think that is a good question, and the Senator's office and my office have worked for a while to try to come up with FISA reforms. One of them is sort of in the USA FREEDOM Act but maybe could be better, saying that there ought to be a special advocate so there is an adversarial proceeding. One of the problems in the USA FREEDOM Act, as it is written, is that the advocate is only appointed by the FISA Court and doesn't have to be appointed by the FISA Court. It may well be that a FISA Court that has given a rubberstamp to bulk collection may not be as inclined to give a special advocate. I also think it is important, as the Senator mentioned many times, that we should get outside of a secret court to a real court, where you really have an advocate that is actually on your side, I think allowing for an escape hatch for people to appeal. For example, if you are being told by a FISA Court that bulk collection of all the phone data in our country is legal, you should have a route to an appellate court, an automatic route out of FISA to an appellate court. I think the appellate courts are fully capable of redacting, going into closed session if they have to, but then you have a real trial, with a real advocate on both sides. I think that is important as well. I do have one question or a question that you may be able to reframe into a question; that is, can you give the public a general idea of what percentage of the overall problem of collecting Americans' data is in the form of bulk data and what percentage do you think is coming from Executive order and what do you think is coming from the 702 backdoor collection of data.

Mr. PAUL. I thank the Senator from Connecticut for that question. I think one of the points my friend was making through the question had to do with the whole idea of relevance, which is sort of an amazing thing. I think the quote from the privacy and civil liberties commission really hits the nail on the head--that they cannot be regarded as relevant to any FBI investigations required by the statute without redefining the word ``relevant'' in a manner that is circular, unlimited in scope, and out of step with the case law. The interesting thing is that we want a body that works a little more like a court, and I know the Senator from Connecticut has been in favor of having a special advocate and trying to make it more like a courtroom. I think you can only get the truth if you have people on both sides. If you have people on one side, it is an inevitability that the truth is going to be lost and you are going to list in one direction. I think that will be a huge step forward, but it does boggle the mind that we can have them arguing that this is relevant to an investigation that has not yet occurred because we are collecting data and then we are going to mine it at some other time for some investigation. So it couldn't be relevant to an investigation because there is not yet an investigation when they are collecting the data. And no FISA Court seemed to question that, so it concerns me as to whether it is a very good kind of undertaking at finding the truth. So I think the Senator is exactly right, and I believe there are things we can definitely do to make it better. I think the bottom line is that we should not collect bulk data on people who are not suspected of a crime. One of the sections of the PATRIOT Act that doesn't get quite as much discussion is section 213. That is the sneak-and-peek section and it is not up for renewal, but it is something that also shows how we have really gone awry on that. Radley Balko has written about this in the Washington Post, and it is how something starts out just a little bit at a time and grows bigger and bigger. From 2001 to 2003, law enforcement only did 47 sneak-and-peek searches. The 2010 report said it was up to 3,970, and 3 years later, in 2013, there were 11,129 sneak-and-peek searches. That is an increase of over 7,000 requests. That is exactly what privacy advocates argued in 2001 would happen. The interesting thing is that when you look to see who exactly we are arresting through these sneak-and-peek warrants that were intended to be a lower standard so we could catch terrorists, well, we are going after drug dealers. So, in essence, we have changed from a constitutional standard to catch drug dealers down to a terrorist standard, which is a lower standard. To make matters worse, there are accusations and implications from data that maybe the war on drugs has a disproportionate racial outcome. I think it is concerning that we are actually not using a constitutional standard but a lower standard. I have an article that was written by Radley Balko in 2014 that appeared in the Washington Post. He says: Washington establishment types are often dismissive and derisive of the idea that members of Congress should actually be required to read legislation before voting on it--or at the very least be given the time to read it. There's also a lot of Beltway scorn for demands that bills be concise, limited in scope and open for public comment in their final form for days or weeks before they're voted on. If you're looking for evidence showing why the smug consensus is wrong, here is Exhibit A. He is talking about the sneak-and-peek and how if we had known what was in it, we would have known in advance that it was not really going to end up being used for terrorists and instead end up being used for domestic crime. He says: This is also an argument against rashly legislating in a time of crisis. On Sept. 11, 2001, the federal government failed in most important and basic responsibility--to protect us from an attack. We responded by quickly giving the federal government a host of new powers. Assume that any power you grant to the Federal Government to fight terrorism will inevitably be used in other context. The article goes on: Assume that the primary ``other context'' will be to fight the war on drugs. (Here's another example just from this month.) I happen to believe that the drug war is illegitimate. I think fighting terrorism is an entirely legitimate function of government. I also think that, in theory, there are some powers the federal government should have for terrorism investigations that I'm not comfortable granting it in more traditional criminal investigations. But I have zero confidence that there's any way to grant those powers in a way that will limit their use to terrorism. Law-and-order politicians and many (but not all) law enforcement and national security officials see the Bill of Rights not as the foundation of a free society but as an obstacle that prevents them from doing their jobs. Keep this in mind when they use a national emergency to argue for exceptions to those rights. When critics point out the ways a new law might be abused, supporters of the law often accuse those critics of being cynical--they say we should have more faith in the judgment and propriety of public officials. Always assume that when a law grants new powers to the government, that law will be interpreted in the vaguest, most expansive, most pro- government manner imaginable. If that doesn't happen, good. But why take the risk? Why leave open the possibility? Better to write laws narrowly, restrictively and with explicit safeguards against abuse. Of the 11,000 sneak-and-peek warrants that were issued, 51 were used for terrorism. We lowered the constitutional standard, but we ended up using it for domestic crime, not for terrorism. This is happening in other forums. There is something that folks are calling parallel construction. This is an article from the Electronic Frontier Foundation by Hanni Fakhoury entitled ``DEA and NSA Team Up to Share Intelligence, Leading to Secret Use of Surveillance in Ordinary Domestic Crime.'' Add the IRS to the list of Federal agencies obtaining information from NSA surveillance. Reuters reports that the IRS got intelligence tips from DEA's secret SOD unit and were also told to cover up the source of that information by coming up with their own independent leads to recreate the information obtained from SOD. So let me explain what happens. We once again use a lower standard, a nonconstitutional standard, the standard we are supposed to be using for terrorists. We get information on people who are not terrorists, who may or may not be committing an IRS violation. We tell the IRS. They know it is illegally obtained information, so then they look for another way to prove that this information--other information that they can find--to prove the point that they only knew about it from legally obtained information. A startling new Reuters story shows one of the biggest dangers of the surveillance state: The unquenchable thirst for access to the NSA's trove of information by other law enforcement agencies. As the NSA scoops up phone records and other forms of electronic evidence while investigating national security and terrorism leads, they turn over ``tips'' to a division of the Drug Enforcement Agency known as the Special Operations Division. FISA surveillance was originally supposed to be used only in specific authorized national security investigations, but information sharing rules implemented after 9/11 allows the NSA to hand over information to traditional domestic law-enforcement agencies, without any connection to terrorism or national security investigations. But instead of being truthful with criminal defendants, judges, and even prosecutors about where the information came from, DEA agents are reportedly obscuring the source of these tips. For example, a law enforcement agent could receive a tip from foreign surveillance, and he could look for a specific car in a certain place. But instead of relying solely on the tip, the agent would be instructed to find his or her own reason to stop and search the car. Agents are directed to keep SOD under wraps and not to mention in their reports where they got their information. If we are going to use standards that are less than the Constitution for IRS investigations, for drug investigations, we ought to just be honest with people that we are no longer using the Constitution. If we are going to use the Constitution, then we shouldn't allow evidence obtained through foreign surveillance and through a lower standard to be used in domestic crime. (Mr. CRUZ assumed the Chair.) Parallel construction, which is basically getting surveillance tips and then using them and reconstructing and trying to come up with a different reason for why law enforcement stopped someone, is something that really--if we are not going to be honest about it, someone has to do something to fix this. After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the tip they got from our foreign surveillance agencies. The training document reviewed by Reuters refers to this process as parallel construction. Senior DEA agents who spoke on behalf of the Agency but only on the condition of anonymity said the process is kept secret to protect sources and investigative methods. Realize they are also keeping it secret from a judge, the defense lawyers, and the prosecution. Some have questioned the constitutionality, obviously, of this program. ``That's outrageous,'' said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. ``It strikes me as indefensible.'' Lawrence Lustberg, a New York defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin ``would not only be alarming, but pretty blatantly unconstitutional.'' Former Federal prosecutor Henry Hockmeier wrote: ``You shouldn't be allowed to game the system. You shouldn't be allowed to create this subterfuge. These are drugs crimes, not national security cases. If you don't draw the line here, where do you draw it?'' This is an article from the Washington Post by Brian Fung entitled ``The NSA is Giving Your Phone Records to the DEA. And the DEA is Covering It Up.'' A day after we learned of a draining turf battle between the NSA and other law enforcement agencies over bulk surveillance data, it now appears that these same agencies are working together to cover up when those data get shared. The Drug Enforcement Agency has been the recipient of multiple tips from the NSA. Realize also that the NSA is supposed to be investigating foreign threats. The NSA was not supposed to be doing anything domestically. We now have them involved in bulk collection, but we also now have them involved in drug enforcement. The article continues: DEA officials in a highly secret office called the Special Operations Division are assigned to handle these incoming tips, according to Reuters. Tips from the NSA are added to a DEA database that includes intelligence intercepts, wiretaps, informants, and a massive database of telephone records. This is problematic because it appears to break down the barrier between foreign counterterrorism investigations and ordinary domestic criminal investigations. Because the SOD's work is classified, DEA cases that began as NSA leads can't be seen to have originated from an NSA source. So what does the DEA do? It makes up a story of how the agency really came to the case in a process known as parallel construction, Reuters explains. Some defense attorneys and former prosecutors said that parallel construction may be legal to establish probable cause for an arrest, but they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants. The report makes no explicit connection between the DEA and the earlier NSA bulk phone surveillance uncovered by Snowden. In other words, we don't know for sure if the DEA's Special Operations Division is getting tips from the same database that has been the subject of multiple congressional hearings. We just know that a special outfit within the DEA sometimes gets tips from the NSA. There is another reason the DEA would rather not admit the involvement of NSA data in their investigations. It might lead to a constitutional challenge to the very law that gave rise to the evidence. Earlier this year, federal courts said that if law enforcement agencies wanted to use NSA data in court, they had to say so beforehand and give the defendant a chance to contest the legality of the surveillance. Lawyers for Adele Daoud, who was arrested in a federal sting operation and charged, suspect that he was identified using NSA information but were never told. Surveys show most people support the NSA's bulk surveillance program strongly when the words ``terrorism'' or ``courts'' are included in the question. When pollsters draw no connection to terrorism, the support tends to wane. What will happen when the question makes clear that the intelligence not only isn't being used for terrorism investigations against foreign agents, but it is actively being applied to criminal investigations against Americans? Some of the companies have begun to push back on the backdoor mandates that are coming from government to get into our information. In one of the most public confrontations of a top U.S. intelligence official by Silicon Valley in recent years, a senior Yahoo Inc. official peppered [NSA] director, Adm. Mike Rogers, at a conference on Monday over digital spying. The exchange came during a question and answer session at a daylong summit on cybersecurity. . . . Mr. Rogers spent an hour at the conference answering a range of questions. . . . The tense exchange began when Alex Stamos, Yahoo's chief information security officer, asked Mr. Rogers if Yahoo should acquiesce to requests from Saudi Arabia, China, Russia, France and other countries to build a ``backdoor'' in some of their systems that would allow the countries to spy on certain users. ``It sounds like you agree with [FBI Director] Comey that we should be building defects into the encryption in our products so that the US government can decrypt,'' Mr. Stamos said. . . . ``That would be your characterization,'' Mr. Rogers said, cutting the Yahoo executive off. Mr. Stamos was trying to argue that if Yahoo gave the NSA access to this information, other countries could try and compel the company [to do the same]. Mr. Rogers said he believed that it ``is achievable'' to create a legal framework that allows the NSA to access encrypted information without upending corporate security programs. He declined to [be more specific]. ``Well, do you believe we should build backdoors for other countries?'' Mr. Stamos continued. ``My position is--hey, look''-- This is from Mr. Rogers, Admiral Rogers-- ``I think that we're lying that this isn't technically feasible''. . . . He said the framework would have to be worked out ahead of time by policymakers--not the NSA. . . . The back and forth came less than two weeks after Apple, Inc. chief executive Tim Cook leveled his own criticism of Washington, saying at a White House cybersecurity conference in California that people in ``positions of responsibility'' should do everything they can to protect privacy, not steal information. Mr. Rogers attempted to parry the questions but also signaled he welcomed the debate. . . . Still, Mr. Rogers did little to deflect recent accusations about the NSA activities. For example, he refused to comment on recent reports that the NSA and its U.K. counterpart stole information from Gemalto NV, a large Dutch firm that is the world's largest manufacturer of cellphone SIM cards. I think the accusations continue to mount. Everywhere we look, we see the anger beginning in our tech industry. We see them wondering about having backdoor mandates built into their product. I think the Senator from Oregon has been great at pointing this out and has written several op-eds talking about what the harm is of leaving basically a portal or an opening for our government but one that may well be exploited by hackers and may well be exploited by foreign governments. Does the Senator from Oregon have a question?

Mr. PAUL. I thank the Senator for that question. In the New York Times, in March of 2014, Clara Miller writes about some of the costs on U.S. tech companies that are occurring from some of this: Microsoft has lost customers, including the government of Brazil. IBM is spending more than a billion dollars to build data centers overseas to reassure foreign customers that their information is safe from the prying eyes in the United States government. And tech companies abroad, from Europe to South America, say they are gaining customers that are shunning U.S. providers, suspicious because of the revelations by Edward J. Snowden that tied these providers to the National Security Agency's vast surveillance program. The estimates are in the billions of dollars lost to American companies. Even as Washington grapples with the diplomatic and political fallout of Mr. Snowden's leaks, the more urgent issue, companies and analysts say, is economic. Tech executives, including Mark Zuckerberg of Facebook, raised the issue when they went to the White House...for a meting with President Obama. It is impossible to see now the full economic ramifications of the spying disclosures--in part because most companies are locked in multiyear contracts--but the pieces are beginning to add up as businesses question the trustworthiness of American technology products. The confirmation hearing last week for the new NSA chief, the video appearance of Mr. Snowden at a technology conference in Texas and the drip of new details about government spying have kept attention focused on an issue that many tech executives hoped would go away. Despite the tech companies' assertions that they provide information on their customers only when required under law-- and not knowingly through a back door--the perception that they enabled the spying program has lingered. ``It's clear to every single tech company that this is affecting their bottom line,'' said Daniel Castro, a senior analyst at the Information Technology and Innovation Foundation, who predicted that the United States cloud computing industry would lose $35 billion by 2016. Forester Research, a technology research firm, said the losses could be as high as $180 billion, or 25 percent of industry revenue, based on the size of the cloud computing, web hosting and outsourcing markets and the worst case for damages. The business effect of the disclosures about the NSA is felt most in the daily conversations between tech companies with products to pitch and their wary customers. The topic of the surveillance, which rarely came up before, is now ``the new normal'' in these conversations, as one tech company executive described it. ``We're hearing from customers, especially global enterprise customers, that they care more than ever about where their content is stored and how it is used and secured,'' said John E. Frank, deputy general counsel at Microsoft, which has been publicizing that it allows customers to store their data in Microsoft data centers in certain countries. Isn't that sad? Isn't it sad that a great American company is having to advertise that they are storing their information in other countries because in America we are not protecting your privacy? Isn't that sad, that a great American company, in order to stay in business, is having to advertise to their customers that they are keeping their information in another country? At the same time, Mr. Castro said, companies say they believe the Federal Government is only making a bad situation worse. ``Most of the companies in this space are very frustrated because there hasn't been any kind of response that's made it so they can go back to their customers and say, 'See, this is what's different now, you can trust us again,''' he said. In some cases, that has meant forgoing potential revenue. Though it is hard to quantify missed opportunities, American businesses are being left off some requests for proposals from foreign customers that previously would have included them, said James Staten, a cloud computing analyst at Forester who has read clients' requests for proposals. There are German companies, Mr. Staten said, ``explicitly not inviting certain American companies to join.'' He added, ``It's like, `Well, the very best vendor to do this is IBM, and you didn't invite them.''' The result has been a boon for foreign countries. Runbox, a Norwegian email service that markets itself as an alternative to American services like Gmail and says it does not comply with foreign court orders seeking personal information, reported a 34 percent annual increase in customers after news of the NSA surveillance. Brazil and the European Union, which had used American undersea cables for intercontinental communication, last month decided to build their own cables between Brazil and Portugal, and gave the contract to Brazilian and Spanish companies. Brazil also announced plans to abandon Microsoft Outlook for its own email system that uses Brazilian data centers. Anybody still think this bulk collection is a good idea for America? Mark J. Barrenechea, chief executor of OpenText, Canada's largest software company, said an anti-American attitude took root after the passage of the PATRIOT Act, the counterterrorism law passed after 9/11 that expanded the government's surveillance powers. This is all coming from a New York Times article by Claire Miller from March of 2014. But ``the volume of the discussion has risen significantly post-Snowden,'' he said. For instance, after the NSA surveillance was revealed, one of OpenText's clients, a global steel manufacturer based in Britain, demanded that its data not cross U.S. orders. ``Issues like privacy are more important than finding the cheapest price,'' said Matthias Kunisch, a German software executive who spurned U.S. cloud computing providers for Deutsche Telekom. ``Because of Snowden, our customers have the perception that American companies have connections to the NSA.'' Security analysts say that ultimately the fallout from Mr. Snowden's revelations could mimic what happened to Huawei, the Chinese technology and telecommunications company, which was forced to abandon major acquisitions and contracts when American lawmakers claimed that the company's products contained a backdoor for the People's Liberation Army of China--even though this claim was never definitively verified. Silicon Valley companies have complained to government officials that Federal actions are hurting American technology businesses. But companies fall silent when it comes to specifics about economic harm, whether to avoid frightening shareholders or because it is too early to produce concrete evidence. ``The companies need to keep the priority on the government to do something about it, but they don't have the evidence to go to the government and say billions of dollars are not coming to this country,'' Mr. Staten said. Some American companies say the business hit has been minor at most. John T. Chambers, the chief executive of Cisco Systems, said in an interview that the NSA disclosures had not affected Cisco's sales ``in a major way.'' Although deals in Europe and Asia have been slower to close, he said, they are still being completed--an experience echoed by other . . . companies. Security analysts say tech companies have collectively spent millions and possibly billions of dollars adding state- of-the-art encryption features to consumer services, like Google search and Microsoft Outlook, and to the cables that link data centers at Google, Yahoo and other companies. IBM said in January that it would spend $1.2 billion to build 15 new data centers, including in London, Hong Kong, and Sidney, Australia, to lure foreign customers that are sensitive about the location of their data. Isn't it sad that companies want to avoid being in America? They want to avoid having their information cross our borders. Salesforce.com announced similar plans this month. Germany and Brazil, where it was revealed that the NSA spied on government leaders, have been particularly adversarial towards American companies and the government. Lawmakers, including in Germany, are considering legislation that would make it costly or even technically impossible for American tech companies to operate inside their borders. Yet some government officials say laws like this could have a motive other than protecting privacy. Shutting out American companies ``means more business for local companies,'' Richard A. Clarke, a former White House counterterrorism adviser, said last month. This is an article that was published on NPR's Web site. The headline is ``As Congress Haggles over Patriot Act, We Answer 6 Basic Questions.'' Quoting from the article: A key section of the Patriot Act--a part of the law the White House uses to conduct mass surveillance on the call records of Americans--is set to expire June 1. That leaves legislators with a big decision to make: Rewrite the statute to outlaw or modify the practice or extend the statute and let the National Security Agency continue with its work. I think it will be interesting to see how the debate ultimately plays out. You have what has been passed in the House--the USA FREEDOM Act-- and passed in the House overwhelmingly. The majority here probably believes we are not collecting enough bulk data. They would prefer to collect more bulk phone data and aren't too concerned that any privacy interests are being trampled upon. So you have two sort of contrary opinions in wondering which direction we go. Some who want more collection of data and say we are not collecting enough data say they might live with it if we add in and force the phone companies to keep the data. Right now, the bill doesn't have them keeping the data. But the concern for some of those of us who believe in privacy is that we may just be trading one form of bulk collection for another, that we may be trading a system where the government collects the data and there is a bulk collection for a system where the phone companies have the bulk collection but you are still having the same sort of collection of data. My concern with the USA FREEDOM Act is that it still, I believe, may allow for a nonspecific warrant. It still may allow for bulk collection in the sense that it says you have to select a specific person, but the specific person can be a corporation. So if you still have a corporation--the problem is that if we put the name ``Verizon'' in and you are getting all of Verizon's customers and the only difference is the phone company is holding the information and then divulging it versus the government holding it, I am not so sure we have had so much of an improvement. Some will say we just need to be safe, we just need to do whatever it takes, that it doesn't matter if we give up any kinds of basic freedoms or privacy in the process. But I think we give up on who we are as a people if we say that basically, at all cost, regardless of what it takes, we are going to do this to keep ourselves safe. The thing is that even the President's privacy commission and the President's review commission--two independent, nonpartisan bodies-- ended up saying that they didn't think anybody was independently captured, that there was no unique information that was actually gotten from either of these programs, that the bulk collection of data hadn't made us safer but it has infringed upon our privacy. I think if we don't have a significant debate on this, if we continue to say ``Well, we are up against a deadline, and because there is a deadline, we don't have time for amendments,'' I think we run a real risk with the American people. Congress has about a 10-percent approval rating right now, and some argue that might be a little bit high considering how great a job we are doing--a 10-percent approval rating. The vast majority of the American people think we have gone too far in the bulk collection of records. In the ACLU survey we looked at a little bit earlier, in the age group between 19 to 39, over 80 percent of people think we have gone too far and we are not protecting privacy. (Mr. SCOTT assumed the Chair.) We just read an article from the New York Times in which they talk about what kind of business is potentially being lost because people don't want American products. I think it is kind of sad. Not only do they not want their data held in a center in our country, they don't want their data crossing into our country. I don't think we have to be that fearful of terrorism that we have to give up who we are in the process. I have met some of our young soldiers who have come back with missing limbs. I have met the parents of some who have died. And to a person, they say they were fighting for our Bill of Rights and they were fighting for our Constitution. It is difficult for me to understand how we can take into account the sacrifice they made in war and at the same time, while we are here safe at home, we can't even protect the documents they are fighting for. I see no reason why we can't rely on the Constitution. I see no reason why we can't rely on traditional warrants. Warrants are not hard to get. Warrants are actually quite easy to get. Warrants are, if anything, very easy to get. On the FISA Court, turning down a warrant is almost nonexistent. So I see no reason why we can't try using the Constitution for a while. I am concerned that the problem is bigger than just what we are talking about today. We are talking about the bulk collection of records supposedly under section 215 of the PATRIOT Act. If we stop that, how much have we stopped? How much is still in existence? How much are we still doing through other venues? I think probably the most alarming thing we have come across as I have been talking today is the idea that some people believe the President has inherent powers that are not subject to Congress. That, to me, is very alarming. It also means that I think that because this opinion persists within the executive branch, there are in all likelihood many programs like the bulk collection of data--many programs that we don't know about, some that we have heard about. It is still not clear to me whether the Stellar Wind Program is completely gone, which involves more than just telephone data, email conversations, computer addresses, and credit cards. What is the government collecting? How much is being collected and under what authority? It does concern me that there are people--some of them elected officials--who believe in the inherent powers of the Presidency that cannot be challenged even by Congress. We have a lot of work if that is really what we are up against. I think it would be a big step forward if we do something about the bulk collection of data. But I think, given the court case, it is concerning to me that we might actually make the court case or the future of it moot and that we actually could make things worse. It wouldn't be the first time we have made things worse, thinking we were fixing things and made it worse. From the opinion of the Second Circuit Court, here are some quotes. The court writes: That telephone metadata do not directly reveal the content of telephone calls does not vitiate the privacy concerns arising out of the government's bulk collection of such data. . . . the startling amount of detailed information metadata can reveal, information that could traditionally only be obtained by examining the contents. . . . I think this is a good point because many people want to downplay what metadata is or what you can determine from it. But here is the court acknowledging that you may actually get more detailed information from metadata than what you once got from obtaining the content. When we think about how true this is, think about if someone were just going to come into your house and take your papers. What could they find? How many people even have personal letters anymore? People don't have anything on paper that is personal at all. A lot of people pay their bills online. But it is amazing, if you put the compilation of all the metadata together, what you can determine. Remember that a high-ranking intelligence official said that we kill people based on metadata. I presume he is talking about foreigners. But if we are killing people based on metadata, the assumption is that they can get an enormous amount of information from metadata, and we should be very careful about releasing this. They give an example of the sort of metadata and what it can determine: For example, a call to a single-purpose telephone number such as a ``hotline'' might reveal that an individual is: a victim of domestic violence or rape; a veteran; suffering from an addiction of one type or another; contemplating suicide; or reporting a crime. Metadata can reveal civil, political, or religious affiliations; they can also reveal an individual's social status, or whether and when he or she is involved in intimate relationships. The more metadata the government collects and analyzes, furthermore, the greater the capacity for such metadata to reveal ever more private and previously unascertainable information about individuals. That is sort of interesting also about metadata. We have so much online and so much information on our phones that you could probably be in someone's house for a month and never find that in paper because so much of our lives revolve through the phone, through things we order and phone calls and all of that, that in the old days what could have been gotten through someone's castle, through someone's actual papers in their house, I think pales in comparison to what you can get simply through metadata even without content. They make another point, too: Finally, as appellants . . . point out, in today's technologically based world, it is virtually impossible for an ordinary citizen to avoid creating metadata about himself [or herself] on a regular basis simply by conducting his ordinary affairs. The order thus requires Verizon to produce call detail records every day on all telephone calls made through its systems or using its service where one or both ends of the phone call are located in the United States. It is hard for me to believe that there are people who don't understand that what we are talking about here is a general warrant. This is what we fought the Revolution over. This is, as John Adams said, the spark that led to the Revolution. The spark that led to the Revolution was the whole worry and concern, one, that soldiers were writing the warrants, and the other concern was that in writing the warrants, they weren't specific to anyone, they were being written in a general fashion, and that by writing them generally so, there could be an injustice in having an entire group who ends up being subject to a warrant that is not specific. From the appellate court, we also hear that the metadata has a reach far beyond almost imagination. In the article ``As Congress Haggles over Patriot Act, We Answer 6 Basic Questions,'' which was published on npr.org, there are several questions they ask about the PATRIOT Act debate. Most of the talk has been about telephone surveillance, but the question is this: What about the NSA's surveillance of email and other Internet activities? This congressional debate has nothing to do with any of NSA's surveillance Internet activity. That's mostly because of the fact that those programs are authorized by different laws. The PRISM program, for example, which collects a vast amount of Internet data . . . is covered under section 702 of the FISA Amendments Act. Some have said that the PRISM Program probably is collecting more information in many ways, maybe even dwarfing the bulk collection of the phone records. So if we don't address section 702 in this debate, this is also what we were talking about earlier, is the backdoor, the ability to say: Well, we are investigating someone in a foreign country, but really they are trying to get access to someone in our country through the backdoor. If we don't address this, we may well not be addressing a significant part of the problem. This is one of the other questions: Is there anything else in the House bill we should know about? The bill [the USA FREEDOM Act] lifts the secrecy surrounding key decisions made by the secret Foreign Intelligence Surveillance Court. Going forward, some will be made public. I think this is a step in the right direction. There are a lot of legal decisions, and I think we can discuss the pros and cons of the legal decision without having to know the specific details. I think Senator Wyden made a good point on this earlier when he said that it is not the operational details we need to know, but when we are questioning and debating the law, there is no reason why that shouldn't be public knowledge. One of the reasons we would like to see the court rulings, too, is that the FISA Court found bulk data collection constitutional. I still find that somewhat inconceivable, that a court that is anything less than a rubberstamp could find it somehow reasonable to say that collecting all of our records in advance really is relevant to an investigation. I think it is a pretty significant point that they are not going to query the data until after they get it. So there is no investigation until they have already collected the data. The other point is that when they say it is relevant, is anybody really determining that arguing one way or the other or do we just accept what the NSA says, that the data is relevant? Nobody knows what will come of this debate. My hope in going on all day with this debate and trying to force the issue is to try to allow for some votes on some amendments to this. We shouldn't have just an up-or-down vote on whether to extend the PATRIOT Act. I think that when we have 80 percent of the population in some cases but at least two- thirds of the entire population saying that the bulk collection of all of our phone records all of the time without a warrant is something that has gone too far and needs to stop, it is an insult to the American people to think that we are not going to have any vote at all, that we would just have a vote up or down on extending this. I think we really do need to have a vote, and the vote needs to be on many different alternatives. It shouldn't just be on one alternative. It needs to be on section 702 and the FISA amendments. It should be on a variety of things that could make this better--whether FBI agents should be able to write their own warrants or whether they should be signed by judges. There are a variety of things we need to be talking about. The Senate could simply take up the House bill and pass the House bill, but I think that is unlikely. This is an interesting article from The Boston Globe, a while back. It says: ``What your metadata says about you: From MIT's Cesar Hidalgo, a new window on what your email habits reveal.'' The article is written by Abraham Rieseman. As recently as a few weeks ago, ``metadata'' was an obscure term known mainly to techies and academics. Broadly defined, metadata is data about other data. For the phone company, it might be the time and length of your calls, but not the conversation itself; in the context of email, it means information such as the sender and recipients of a message-- basically, everything except what the message actually says. We spoke earlier about the suspicious activity reports. These are reports that the government requires that banks send in. It adds a cost to your banking, and it is a pretty significant intrusion into the banking affairs and also into an individual's affairs. This is an article that was written by the ACLU about suspicious activity reports. Law enforcement agencies have long collected information about their routine interactions with members of the public. Sometimes called ``field interrogation reports'' or ``stop and frisk records,'' this documentation, on the one hand, provides a measure of accountability over police activity. But it also creates an opportunity for police to collect the personal data of innocent people and put it into criminal intelligence files with little or no evidence of wrongdoing. As police records increasingly become automated, law enforcement and intelligence agencies are increasingly seeking to mine this data. The Supreme Court established ``reasonable suspicion'' as the standard for police stops in Terry v. Ohio in 1968. This standard required suspicions supported by articulable facts suggesting criminal activity was afoot . . . In the suspicious activity reports, though, these kinds of programs threaten this reasonable time-tested law enforcement standard by encouraging the police and the public to report behaviors that do not rise to reasonable suspicion. So it is one thing to say that someone has done something that rises to reasonable suspicion, but it is another to say that activity that could be perfectly normal, like withdrawing $1,000 from the bank or putting $1,000 in the bank, somehow is suspicion of a crime that we should be investigating. A lot of this stuff has gotten really, really out of control. It is one of the things where actually the newspapers have done a pretty good job of reporting some of the stuff--not necessarily the suspicious activity reports but on some of the other confiscations of people's assets without really evidence of a crime but maybe evidence that they have cash. You can be driving down the road in DC and make an unsafe lane change and the government asks you if you have money. You then find that the government takes it or the government says: Well, you have $2,000. We will let you keep $1,000 if you sign a statement saying that you will not sue us to get the $1,000 back. Believe it or not, that is stuff that is still happening in our country. It is called civil asset forfeiture. To make it worse, we actually give a perverse incentive. We say to the local officials that if you capture money from people, we will give you a percentage of it-- so the more you take, the more you get. Some people have shown that people actually go after things that are paid off. There was a motel in New Jersey, the Motel Caswell. Local officials decided they would go after it because, they said, there had been some drug dealings at the motel. It turned out there were 6 people in the motel selling drugs out of 180,000 visits or something ridiculous. It turned out there were other hotels that had a higher percentage of drug busts done at the hotel, but they owed money and the Motel Caswell was completely paid off. It may have been part of the decisionmaking process, because when the government came and seized the hotel for illegal activity, they took the hotel and went sell it, but it has a lien against it. The bank owns it, and you do not get to sell it very easily. It was paid off. They were going to sell it. It is a $1.5 million hotel. And then, I guess, the local police forces would benefit by that. It is not just with our records that there is a problem. It is also with the concern for how we adjudicate justice in our country. As we see this moving forward, I think we need to be worried about not only the way our records are collected, but we need to be concerned about justice in general. As I have traveled around the country, one of the things I have seen is what I call an undercurrent of unease in our country. I traveled to Ferguson. I have traveled to Detroit. I have been to Chicago. I have been to most of our major cities, and I have also been to some of the places where there has been this anger. I think people are angry because they do not feel that government is treating them justly. People do not like to be treated arbitrarily. In fact, there are some who have given the definition of what is acceptable, what is good government and what is bad government, what is good law and what is bad law, what is just and what is unjust. But whether it is arbitrary or not, Hyack in ``The Road to Serfdom'' talks about that arbitrariness, not having the predictability of knowing what the law will do. That the law does not do the same thing to all individuals is a definition of the injustice that causes people to be unhappy about the way their government treats them. My fear is that this arbitrary nature of collecting bulk records, of collecting all of our records without a significant warrant--the problem here is going to be something that adds on to a sense of unease that is in our cities and in our country at-large. What happens is that everybody is not treated exactly equal. People do not have the same resources to try to escape the clutches of Big Brother when either data or information is used against them. One of the little-noticed sections in the USA FREEDOM Act deals with the safety of maritime navigation and nuclear terrorists and conventions implementation. Interestingly, there is a provision somehow in this for civil forfeiture. But I think the biggest problem with civil forfeiture is that we allow it to occur without a conviction. I think no one should have their possessions taken from them. I think you should be innocent until proven guilty. I see that the Senator from Connecticut has a question. I would be happy to entertain a question without losing the floor.

Mr. PAUL. I think it is a great question, and some are saying that through the backdoor of abusing 702, that if there were 90,000 people targeted last year through using this 702, that we collected the information on 900,000 individuals who were incidental and were not the target at all. So for every one byte of data we are collecting on somebody, we are collecting nine bytes of data on somebody who is not the target. But that becomes part of this enormous data center that we are building. And many of those people are Americans who were getting through the backdoor. But also why I am here today is I want the leadership to allow us to have our amendments. That is one of our amendments. That is a joint amendment we have worked on. We have been working on these things for months. This only comes up every 3 years. Should they not give us a day to have a vote on some of these amendments?